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2022 DIGILAW 186 (KAR)

Kumar Sohil v. Subhas

2022-02-09

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT 1. The captioned second appeal is filed by unsuccessful appellants-plaintiffs wherein both the Courts have dismissed the suit filed for partition and separate possession and for consequential relief of injunction. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The facts leading to the case are as under: Plaintiff No.1 is the son born in the wedlock of plaintiff No.2 and defendant No.1. The suit property is a residential house bearing TMC No.2331 of Teradal. The plaintiffs claim that the defendant No.1 is the owner of the suit schedule property. It is further stated that defendant No.1 had purchased the open site and has constructed a residential house in the suit property. The plaintiff No.2 who claims to be the wife of defendant No.1 has taken a specific contention that at the time of purchasing the suit schedule property she had also contributed towards the sale consideration. It is further contended in the plaint that for the last one year, there was no cordial relationship between plaintiff No.2 and defendant No.1 and that the defendant No.1 started threatening the plaintiffs that he will throw them out from the residential house. The plaintiffs have also alleged that defendant No.1 is addicted to vices. 4. The defendant No.2 who is the manager of defendant No.2-Society filed the written statement and stoutly denied the entire averments made in the plaint. The defendant No.2-Society specifically contended that defendant No.1 for family necessity has obtained loan and therefore, defendant No.2-Society has initiated recovery proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities InterestAct (for short "SARFAESI Act"). Therefore, defendant No.2 contended that plaintiffs have not issued prior notice of sixty days before filing the present suit. It was also specifically averred in the written statement that plaintiff No.2 is the surety to the loan transaction and hence, a specific contention was taken that suit filed plaintiffs against the Co-Operative society is not maintainable without prior notice. It was also specifically contended that plaintiff No.2 and defendant no.1 in collusion have filed a frivolous suit. 5. The trial Court having assessed the oral and documentary evidence answered Issue No.2 in the negative by recording a categorical finding that plaintiff No.2 has failed to prove that she has contributed towards sale consideration while purchasing the site. It was also specifically contended that plaintiff No.2 and defendant no.1 in collusion have filed a frivolous suit. 5. The trial Court having assessed the oral and documentary evidence answered Issue No.2 in the negative by recording a categorical finding that plaintiff No.2 has failed to prove that she has contributed towards sale consideration while purchasing the site. While examining issue No.3, the trial Court has categorically recorded a finding that plaintiffs have failed to prove that defendant No.1 is attempting to dispossess them illegally from the suit schedule property. While examining Issue No.5 though the Court held that the suit for partition is maintainable in respect of the property is the subject-matter of SARFAESI Act, however, the trial Court was of the view that defendant No.2 being the secured creditor is equally entitled to recover the secured debt in terms of the provisions of the SARFAESI Act. While examining Issue No.6, the trial Court has recorded a categorical finding that since plaintiffs have filed the suit without issuing prior notice under the Co-Operative Societies Act, the present suit against defendant No.2 is not at all maintainable. On these set of reasoning, the suit came to be dismissed. 6. The plaintiffs feeling aggrieved by the judgment and decree of the trial Court preferred an appeal before the appellate Court in R.A.No.79/2007. The appellate court having independently assessed the oral and documentary evidence has not only negatived the contention raised by the plaintiffs but has proceeded to record a categorical finding that the present suit filed by the plaintiffs is a collusive suit and the same is filed at the instance of defendant No.1. Having examined the judgment rendered by the Division Bench of this Court reported in 2006(1) KCCR 136 held that though the partition suit is not barred under Sec. 34 of the SARFAESI Act, however, the Society is equally entitled to proceed under the provisions of the SARFAESI Act against the mortgaged property. The appellate court also on re-appreciation of the oral and documentary evidence found that plaintiff No.2 is the surety to the loan transaction. The defendant No.2-Society has proceeded against the secured debt by invoking the provisions of the SARFAESI Act and notice was also issued under Sec. 13(2) of SARFAESI Act. The appellate court also on re-appreciation of the oral and documentary evidence found that plaintiff No.2 is the surety to the loan transaction. The defendant No.2-Society has proceeded against the secured debt by invoking the provisions of the SARFAESI Act and notice was also issued under Sec. 13(2) of SARFAESI Act. The appellate Court found that the present suit is a collusive suit and the same is filed at the instigation of defendant No.1 only to defeat the claim of the society. The appellate Court also found that plaintiffs and defendant No.1 are residing in the same house and therefore, the present suit filed on the premise that defendant No.1 is addicted to vices is an afterthought and the present suit is filed only to stall the recovery proceedings initiated by defendant No.2-Society. On these set of reasonings, the appellate Court has concurred with the findings of the trial Court. 7. It is against these concurrent judgments and decrees of the Courts below, the plaintiffs are before this Court. 8. Heard the learned counsel for the appellants- plaintiffs and perused the judgments under challenge. 9. The plaintiffs are seeking partition in the suit schedule property by alleging that defendant No.1 who is the father of plaintiff No.1 and husband of plaintiff No.2 is addicted to vices. Plaintiff No.2 claims that the suit schedule property which is a open site was jointly purchased by plaintiff No.2 and defendant No.1. Having taken such a contention, no documents are produced. In the absence of clinching evidence, both the Courts have concurrently held that the suit schedule property is the self acquired property of defendant No.1. 10. The next question that needs to be examined is whether the present suit is maintainable and the plaintiffs can enforce partition in the suit schedule property in the background of recovery proceedings initiated by defendant No.2-Society. My answer is "No". Though, there is no bar to maintain the partition suit in terms of Sec. 34 of SARFAESI Act., however, defendant No.2-Society being a secured creditor has an unfettered right to proceed against the mortgaged property to recover the debt. The material on record clearly indicates that defendant No.2 has issued notice under Sec. 13(2) of SARFAESI Act. Both the Courts have recorded a concurrent finding that plaintiff No.2 has failed to prove that she has also contributed to the purchase of suit schedule property. The material on record clearly indicates that defendant No.2 has issued notice under Sec. 13(2) of SARFAESI Act. Both the Courts have recorded a concurrent finding that plaintiff No.2 has failed to prove that she has also contributed to the purchase of suit schedule property. Both the Courts have held that the present suit is frivolous suit and the same is filed in collusion with defendant No.1. If plaintiff No.2 has signed as a surety and was aware of the proceedings initiated by defendant No.2- Society by invoking the provisions of the SARFAESI Act., the present suit is filed at the instigation of defendant No.1. Therefore, both the Courts were justified in holding that plaintiffs are not entitled for share in the suit schedule property as it is the self acquired property of defendant No.1. The plaintiffs have not issued notice as required under the provisions of the Karnataka Co-Operative Societies Act before filing the suit against the Co-Operative Society. The relevant issue is answered against the plaintiff. Therefore, even on this count, the suit is not maintainable as the plaintiffs have not issued notice prior to filing of the suit. On perusal of the materials on record, this Court would find that no substantial question of law arises in the present case on hand. Accordingly, the appeal is dismissed.